FEDERAL ELECTION COMMISSION

Washington, DC 20463

November 22, 2022

MEMORANDUM

TO:

FROM:

Subject:

The Commission 

Lisa J. Stevenson 

Acting General Counsel 

Neven F. Stipanovic 

Associate General Counsel 

Robert Knop

Assistant General Counsel 

Heather Filemyr 

Attorney

AO 2022-24 (Allen Blue) - Draft A 

Attached is a proposed draft of the subject advisory opinion.

Members of the public may submit written comments on the draft advisory opinion. We 

are making this draft available for comment until 12:00pm (Eastern Time) on 

November 30, 2022.

Members of the public may also attend the Commission meeting at which the draft will be 

considered. The advisory opinion requestor may appear before the Commission at this 

meeting to answer questions. 

For more information about how to submit comments or attend the Commission meeting, 

go to https://www.fec.gov/legal-resources/advisory-opinions-process/.

Attachment 

AGENDA DOCUMENT NO. 

AGENDA ITEM 

For meeting of December 1, 2022

22-54-A
1 ADVISORY OPINION 2022-24

2

3 Ezra W. Reese, Esq. 

4 Emma R. Anspach, Esq. DRAFT A

5 Elias Law Group

6 10 G Street, NE

7 Suite 600

8 Washington D.C. 20002

9 Dear Mr. Reese and Ms. Anspach:

10 We are responding to your advisory opinion request on behalf of Allen Blue,

11 concerning the application of the Federal Election Campaign Act, 52 U.S.C. §§ 30101-45

12 (the “Act”), and Commission regulations to Mr. Blue’s proposal to establish an 

13 irrevocable trust during his lifetime that would make contributions to candidates and 

14 political committees, among other recipients. The Commission concludes that: (1) the 

15 proposed trust may make contributions to federal candidates and political committees; (2) 

16 contributions from the trust must be attributed to both the trust and to Mr. Blue if the 

17 trustees have discretion over the selection of the recipient of the contribution; and (3) 

18 indexed contribution limits in effect at the time that the trust makes a contribution to a 

19 candidate or political committee would apply.

20 Background

21 The facts presented in this advisory opinion are based on your letter dated

22 October 3, 2022.

23 Allen Blue is a United States citizen. Mr. Blue represents that he is over 18 years 

24 old, is not a federal government contractor, and is eligible to make contributions to 

federal candidates and political committees.1 25 As part of his estate planning, Mr. Blue 

1 Advisory Opinion Request (“AOR”) at AOR001.
AO 2022-24 (Allen Blue) 

Draft A 

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1 proposes to create an irrevocable trust, a legal form “which prohibits the requestor from 

amending or terminating the trust after its creation.”2 2 The trust would begin operating 

during Mr. Blue’s lifetime and is thus a living, i.e., inter vivos trust.

3 3 All trust assets 

4 would be “personally held” by Mr. Blue until he transfers the assets to the trust; the trust 

5 would not receive funds from any source other than Mr. Blue and any investment income 

from the assets provided by him to the trust.4 6 Mr. Blue would not be a beneficiary of the 

trust. 7 

8 Mr. Blue represents that the “trust’s major purpose would not be campaign 

9 activity. Its major purpose would be supporting nonprofit organizations that align with 

the requestor’s progressive values.”5 10 According to request, the “majority of the trust’s 

11 disbursements would be for the general support of nonprofit organizations that are not 

registered as political committees under the Act.”6 12 The request also states that “[t]he 

13 trust would not earmark any of the funds it distributes to non-profit organizations to be 

14 contributed to candidates or political committees or otherwise direct its distributions to 

non-profits to be used for federal political purposes.”7 15 The trust documents would 

2 AOR001.

3 A living, i.e., inter vivos, trust is a trust created by an individual during his or her lifetime and may 

be either revocable or irrevocable. See IRS Q&A, “What are testamentary and Inter Vivos trusts?”, 

https://www.irs.gov/businesses/small-businesses-self-employed/abusive-trust-tax-evasion-schemesquestions-and-answers (last visited Nov. 1, 2022).

4 AOR001.

5 AOR004 (emphasis in original). 

6 AOR002.

7 Id. 
AO 2022-24 (Allen Blue)

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1 prohibit the trust “from engaging in independent expenditures or electioneering 

communications.”8 2 

3 In addition to its contribution to nonprofit organizations, the trust “would also 

4 contribute to federal candidates for public office, to federal and state political party 

committees, and to other federally-registered committees.”9 5 The requestor represents that 

6 if the trust makes contributions to federal candidates or political committees during Mr. 

Blue’s lifetime, the trust will share an aggregate contribution limit with Mr. Blue.10 7

8 Disbursements from the trust, including contributions to candidates and political 

9 committees, would be administered by trustees. The founding trust documents would 

10 name the initial trustees, and the initial trustees would be authorized to appoint additional 

11 eligible trustees. All trustees would be natural persons over 18 years old who are U.S. 

12 citizens or lawful permanent residents eligible to contribute to federal candidates and 

13 political committees.

14 The trust instruments would permit contributions “to designated recipients based 

15 on objective criteria set forth in the trust instrument, such as a particular party committee 

16 or the Democratic nominee in a particular district or state,” and contributions to 

17 candidates and political committees selected by the trustees in their discretion following 

standards provided in the trust document.

11 18 Those discretionary standards “would require 

19 the trustees to support only candidates and committees that further Mr. Blue’s support for 

8 AOR002.

9 Id.

10 Id. 

11 Id.
AO 2022-24 (Allen Blue)

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1 progressive candidates and/or for his support of action to protect the environment, ensure 

the equality of all persons under the law, and protect the least-well-off among us.”12 2

3 Questions Presented

4 1. May the proposed trust contribute to federal candidates, political party 

5 committees, and other federally registered committees under the Act and Commission 

6 regulations?

7 2. How should contributions from the trust be attributed when the trustee has 

8 discretion over the recipient of contributions from the trust’s funds? 

9 3. Do the indexed contribution limits applicable at the time the contribution 

10 is made by the trust apply? 

11 Legal Analysis

12 1. May the proposed trust contribute to federal candidates, political party 

13 committees, and other federally registered committees under the Act and Commission 

14 regulations?

15 Yes, the proposed trust may contribute to federal candidates, political party 

16 committees, and other federally registered committees under the Act and Commission 

17 regulations because the trust would be a “person” under the Act and is not a prohibited 

18 source.

19 The Act provides limits on contributions by any “person,” other than a source 

prohibited from making contributions, to federal candidates and political committees.

13 20 

12 AOR002.

13 52 U.S.C. § 30116(a)(1); see also 11 C.F.R. § 110.1(a), (b).
AO 2022-24 (Allen Blue) 

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1 The term “person” under the Act broadly includes “an individual, partnership, committee, 

2 association, corporation, labor organization, or any other organization or group of 

persons,” subject to exclusions not relevant to this request.14 3 The Act and Commission 

4 regulations do not expressly list trusts in the definition of “person.” However, the 

5 Commission has concluded in previous advisory opinions that, “[b]ecause the Act 

6 includes no express or implied prohibitions on contributions” from a testamentary estate, 

7 a testamentary estate is within the definition of “person” for purposes of the Act and is 

8 treated as the “successor legal entity to the testator” for purposes of the Act’s contribution 

9 limits, including where the estate funds are contributed to a political committee through a 

testamentary trust.

15, 16 10 

11 While the trust proposed by Mr. Blue is not a testamentary trust because it would 

12 be funded and active during his lifetime, the same principles apply here. The Act 

13 provides no express or implied prohibition on contributions by a living trust, and the 

14 proposed trust fits within the Act’s broad definition of “person.” As with a testamentary 

15 trust, the proposed living trust would serve as a successor entity to Mr. Blue, sharing his 

14 52 U.S.C. § 30101(11); see also 11 C.F.R. § 100.10.

15 “A testamentary trust is created by a will, which begins its existence upon the death of the person 

making the will, when property is transferred from the decedent’s estate.” See IRS Q&A, “What are 

testamentary and Inter Vivos trusts?”, https://www.irs.gov/businesses/small-businesses-selfemployed/abusive-trust-tax-evasion-schemes-questions-and-answers (last visited Nov. 1, 2022).

16 Advisory Opinion 2004-02 (National Committee for an Effective Congress) (“NCEC”) at 2-3; see 

also Advisory Opinion 1988-08 (Nelson) at 2 (“Because the Act includes no express or implied prohibition 

on contributions from a decedent’s estate, including those distributed through a trust created by the 

decedent . . . a testamentary estate is the successor legal entity to the testator and qualifies as a person under 

the Act subject to the same limitations and prohibitions applicable to the decedent in the decedent’s 

lifetime.”) (superseded in part on other grounds). 
AO 2022-24 (Allen Blue) 

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contribution limit.

17 1 Because the trust and Mr. Blue would share an aggregate 

2 contribution limit, treating the trust as a “person” under the Act would not enable Mr. 

3 Blue to use the trust to make excessive contributions. Accordingly, the proposed trust 

may make contributions to candidates and political committees.

18, 19 4 

5 2. How should contributions from the trust be attributed when the trustee has 

6 discretion over the recipient of contributions from the trust’s funds? 

7 Contributions from the trust must be attributed to both the trust and to Mr. Blue if 

8 the trustees have discretion to select “candidates and committees that further Mr. Blue’s 

9 support for progressive candidates and/or for his support of action to protect the 

10 environment, ensure the equality of all persons under the law, and protect the least-welloff among us.”20 11 

12 The Commission has addressed a similar question in the context of testamentary 

13 trusts. In Advisory Opinion 1996-03 (Breeden-Schmidt Foundation), the Commission 

17 AOR002.

18 However, the trust may not make contributions to a political committee if the trust’s trustees also 

serve as officers, directors, employees, members, or agents of the political committee receiving the 

contribution. Advisory Opinion 2004-02 (NCEC) at 3 (concluding that requestor, a political committee, 

“may accept contributions only from trusts for which neither [the political committee] nor an officer, 

director, employee, member, agent, or affiliated organization of [the political committee] serves as 

trustee”). This limitation on permissible recipients ensures that the recipient political committee does not 

control trust funds that exceed the Act’s limits on contributions to that committee. See id. (explaining that, 

to avoid an excessive contribution, a political committee may not “exercise any control over the 

undistributed trust corpus or interest amounts”).

19 The requestor does not ask the Commission to determine whether the proposed trust would be a 

political committee under the Act and Commission regulations. Accordingly, this advisory opinion does 

not reach that issue. The requestor represents that “[t]he trust’s major purpose would not be campaign 

activity. Its major purpose would be supporting nonprofit organizations that align with the requestor’s 

progressive values.” AOR004 (emphasis in original). The Commission’s conclusions in this advisory 

opinion rely upon that representation. 

20 AOR002.
AO 2022-24 (Allen Blue) 

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1 considered political contributions made by a foundation established by a testamentary 

2 trust. In that advisory opinion, the declaration of trust under which the foundation was 

3 established stated that foundation funds were to be used “to pay out such sums as 

4 contributions and subsidies and for conducting operations themselves to persons, entities 

5 and causes of Socialism and those causes related to Socialism,” including by “supporting 

. . . candidates for public office.”21 6 The Commission concluded that because political 

7 contributions authorized by the foundation’s trustees were “explicitly limited by the 

8 purposes and conditions set forth” by the testator, contributions made by the foundation 

9 “should be attributed to the successor in interest to [the testator] and his estate, the 

Foundation, rather than to the Foundation’s trustees.”22 10 The Commission reached this 

11 conclusion even though the foundation’s trustees had broad discretion to make political 

contributions that would advance the cause of Socialism.23 12 The Commission further

13 explained in Advisory Opinion 2004-02 (NCEC) that, when a political committee reports 

14 contributions by a testamentary trust, the committee must disclose the name of “both the 

trust and the name of the decedent.”24 15 

16 By contrast, in Advisory Opinion 1999-19 (Ellis), the Commission considered a 

17 proposal by an individual who had established a living trust for which he served as the 

18 sole beneficiary, trustee, and trustor, to make a contribution to a candidate committee 

19 using funds held in trust. In that circumstance, the Commission determined that the 

21 Advisory Opinion 1996-03 (Breeden-Schmidt Foundation) at 2.

22 Id. at 3.

23 Id.

24 Advisory Opinion 2004-02 (NCEC) at 3. 
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1 contribution was a contribution from that individual only, and not the trust, because the 

2 individual was “the beneficial owner and . . . retained complete control over use of the 

funds in the trust.”25 3 

4 Here, Mr. Blue’s proposal more closely resembles the circumstances described in 

5 Advisory Opinions 1996-03 (Breeden-Schmidt Foundation) and 2004-02 (NCEC) than

6 the living trust in Advisory Opinion 1999-19 (Ellis). The trust would be established by 

7 Mr. Blue as part of his estate plan as an irrevocable trust, and so Mr. Blue would have no 

8 authority to amend or terminate the trust or withdraw funds from the trust after its 

9 creation. In addition, unlike in Advisory Opinion 1999-19 (Ellis), Mr. Blue would not be 

a beneficiary of the trust.26 10 

11 The trust documents would provide discretion to the trustees to support 

12 progressive candidates and make contributions to “candidates and committees that further 

13 Mr. Blue’s support for progressive candidates and/or for his support of action to protect 

14 the environment, ensure the equality of all persons under the law, and protect the leastwell-off among us.”27 15 These discretionary standards are similar to those governing the 

16 foundation in Advisory Opinion 1996-03 (Breeden-Schmidt Foundation), which 

17 authorized political contributions to promote Socialism. Accordingly, the contributions 

25 Advisory Opinion 1999-19 (Ellis) at 2.

26 AOR002. The Commission also assumes that Mr. Blue would not serve as a trustee of the trust.

27 AOR002.
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1 here should be attributed to both the trust and Mr. Blue and should not be attributed to the 

trustees.

28 2 

3 3. Do the indexed contribution limits applicable at the time the contribution 

4 is made by the trust apply? 

5 The indexed contribution limits in effect at the time that the trust makes a 

6 contribution to a candidate or political committee, not those in effect at the time Mr. Blue 

7 provides assets to the trust, would apply to contributions from the trust’s funds. 

8 Under Commission regulations, a contribution is made “when the contributor 

9 relinquishes control over the contribution,” which occurs “when it is delivered by the 

10 contributor to the candidate, to the political committee, or to an agent of the political 

committee.”29 11 In the context of a testamentary estate, the Commission has previously 

12 determined that this occurs when the estate relinquishes control of the funds to the 

candidate or political committee.30 13 A testamentary estate “is subject to the same

14 limitations and prohibitions as the decedent would be subject to if he were still living and 

28 The Commission’s regulation at 11 C.F.R. § 110.6(d) provides that an earmarked contribution to a 

candidate is treated as both a contribution by the original contributor and a conduit or intermediary if the 

conduit or intermediary “exercises any direction or control over the choice of the recipient candidate.” 

11 C.F.R. § 110.6(d). While the trustees would exercise control over the ultimate recipient of a 

contribution, they would do so as agents acting on behalf of the trust, with the contribution attributed to 

both Mr. Blue and the trust, consistent with 11 C.F.R. § 110.6(d). The contribution should not be attributed 

to the individual trustees. 

29 11 C.F.R. § 110.1(b)(6).

30 Advisory Opinion 2015-05 (Shaber) at 3, n.3; see also Advisory Opinion 1999-14 (Council for a 

Livable World) at 3 (concluding that contributions made by testamentary bequest to political committee 

were made “at the time the funds were distributed by the estate” to committee).
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1 making the contributions directly,” and the applicable limits are those that “would apply 

to the decedent if he were alive when the estate makes the contribution.”31 2 

3 Similarly, here, the limits that apply to a contribution by the proposed trust to a 

4 candidate or political committee are those that would apply to Mr. Blue (whether he is 

5 living or deceased at the time of the contribution) at the time that the trust relinquishes 

6 control of the funds to the ultimate recipient political committee or candidate. Because 

7 the trust may make political contributions while Mr. Blue is still living, the requestor 

8 acknowledges that “the trust would share its aggregate contribution limits with the 

requestor” during his lifetime.32 9 

10 The Commission expresses no opinion regarding the potential application of tax 

11 law or trust and estate law to the proposed activities because those questions are not 

12 within the Commission’s jurisdiction.

13 This response constitutes an advisory opinion concerning the application of the 

14 Act and Commission regulations to the specific transaction or activity set forth in your 

request.33 15 The Commission emphasizes that, if there is a change in any of the facts or 

16 assumptions presented, and such facts or assumptions are material to a conclusion 

17 presented in this advisory opinion, then the requestor may not rely on that conclusion as 

18 support for its proposed activity. Any person involved in any specific transaction or 

19 activity that is indistinguishable in all its material aspects from the transaction or activity 

31 Advisory Opinion 2015-05 (Shaber) at 3, n.3 (explaining “if an individual were to die in 2016 and 

bequeath to a committee a contribution that his estate were to disburse in 2018, the 2018 contribution limit 

would apply to that contribution”).

32 AOR002. 

33 See 52 U.S.C. § 30108. 
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1 with respect to which this advisory opinion is rendered may rely on this advisory 

opinion.34 2 Please note that the analysis or conclusions in this advisory opinion may be 

3 affected by subsequent developments in the law including, but not limited to, statutes,

4 regulations, advisory opinions, and case law. Any advisory opinions cited herein are 

5 available on the Commission’s website.

6 On behalf of the Commission,

7 Allen J. Dickerson

8 Chairman

34 See 52 U.S.C. § 30108 (c)(1)(B).